The lack of a tort of privacy in the UK emphasizes the conceptual fragility of the right to privacy, as well as the importance and inadequacies of the equitable remedies of confidence, various torts associated with the intentional infliction of harm on other people, and administrative law principles governing the proper use of police powers (Bloy & Hadwin, 2007; Webb, Jones, & Walker, 2006). Article 8(1) of the European Convention of Human Rights provides for everyone’s right to respect for their private and family life, their home and correspondence. However, courts in the country reject the equation of Article 8 to a freestanding right to privacy. In Wainwright v Home Office (2003), the House of Lords ruled that there was neither a cause of action under English law for the invasion of privacy nor was such cause of action created by Article 8. While privacy ought to be recognized as underlying the rule of law, it is not a legal principle capable of adequate definition from which clear rules may be deduced for practical application. Despite this finding, regulatory codes include fairly clear guidelines on privacy. Clause 3 of the Press Complaints Commission, sets out zones of privacy and bans intrusive photography (effectively necessitating consent) in cases where there is reasonable expectation of privacy. On the other hand, section 8 of the Office of Communications rules also requires privacy infringements to be warranted. Information collected in public or that which is already in the public domain is generally considered to have diminished expectation of privacy, even though this is dependent on the specific circumstances.
However, Article 8 expands the scope of action under the breach of confidence, particularly the misuse of private information. Claims for misuse of private information only require the establishment of a reasonable expectation of privacy with respect to the said information. In Campbell v Mirror Group Newspapers Ltd (2004), the House of Lords recorgnized that the tort of breach of confidence had developed to offer remedies for wrongful disclosure of private information. While the published information was prima facie private, its initial and second publication was warranted in the interest of the public by way of Article 10, but subsequent publications amounted to wrongful disclosure of private information. Further, the court held that Articles 10 and 8 rank equally, which is why, it was necessary for courts to assess the comparative importance of the rights claimed in every case; and the justifications for interference with or restriction of each of those rights, before the proportionality test may be applied to determine the right balance. Once information is identified as private, the reasonable expectation of privacy test, by which the need to keep information private is weighed against the copuntervailing interests of the receipients in published it is weighed. In addition, it is possible to assert the right to privacy by using the Wilkinson v. Downton (1897) rule that the deliberate infliction of emotional harm comprised a form of tresspassing. The rule can be extended to other interests by way of the Human Rights Act 1998.
The right to privacy is not absolute, and may be compromised by consent or conduct. The individuals’ expectation of privacy in respect to given information or data must legitimate/reasonable, especially when such information is not in the public domain or is not trivial. Other than Article 10, which provides for the freedom of expression, it is clear in Campbell v Mirror Group Newspapers Ltd (2004) as well as in Article 8(2) of the European Convention of Human Rights that privacy infringements may be permitted if it serves the interest of the public and the degree of intrusion is proportionate to the interest served. Information that is voluntarily published or in genuine public domain is generally unprotected if it is generally accessible. Similarly, media-trained celebrities who need to create and project certain professional images in the media, and even, actively court the media attention, will have reduced expectation of privacy with respect to the aspects of their lives that they cause to be in the public domain (including the public attention that they command), but their right as individuals to privacy is not lost. The PCC Code protects persons who are at a genuine risk of stalking/harrassment, confidential health information (including pregnancy), vulnerable persons, private homes/spaces, and unreasonable scrutiny of public servants and the royal family. The PCC Code is in part informed by numerous legislative frameworks, including the Harassment Act 1997 and the Protection of Freedoms Act 2012.
For organizations, proprietary information or trade secrets, including technical secrets, non-technical information (copyrighted information, etc.), professional and privileged information, etc., that is are not generally accessible to the public, have commercial value, and have been subjects of reasonable steps to ensure their secrecy, are protected. The European Commission’s draft directive on the Protection of Undisclosed Know-How and Business Information may lead to a formal statute on the same. Similarly, organizations are obliged under the Data Protection Act 1998 to ensure private information in their control is not abused, and therefore, required to abide by the provisions of the Human Rights Act 1998, etc. (Cox, 2014; Bloy & Hadwin, 2007).
Impact on the Communications Field
The rapid developments in information technology have led to the emergency of a global information economy, which not only means that companies and governments have an enhanced access to private information, but perhaps more importantly, there are more opportunities for abuse of the same. The communications industry, like many others, has more access to more data and information, from myriads of increasingly intrusive sources. The sheer amount of personal data being gathered, processed, and shared in the UK (and across the world) presents a severe challenge to the existent legislative frameworks, regulations and individual practitioners. Given the fact that practitioners in the communications industry lack precise definitions of privacy, public interest, and other critical aspects of law, the existence of clear legislative frameworks and practice codes makes actual practice easier. With such laws and regulations, practitioners do not need to have a deeper understanding of law in order to be effective in their work.
Further, the existence of increasingly stringent privacy laws promote professionalism and responsible journalism in the access to, and use of private information. Individual practitioners, editors and organizations in the industry are encouraged by privacy laws/codes and the prospect of legal action by aggrieved parties to take measures to avoid infringing on privacy rights. Lastly, these laws help create a media industry that promotes individual and public good. Communication practitioners are expected to show compassion to individuals, who are negatively affected by the news, demonstrate sensitivity in their search for information, and appreciate that collecting and reporting some information may be detrimental to the welfare of those involved. Privacy laws and regulatory codes help prevent reckless and abusive search and use of private information, which in turn ensures that the damage to individual/vulnerable citizens is mitigated, and the media plays a generally constructive role in the promotion of public interest, decency, and good taste.
There are considerable negative effects too. To begin with, more red tape and other administrative issues that cost time and money mean that the work environment is increasingly difficult. Practitioners need to seek the consent of data subjects, edit content to protect vulnerable subjects, censor information to prevent unwarranted privacy infringements, and fight occasional legal challenges. Further, these laws may encourage self-censorship in the industry, which should impact the quality and willingness to gather and share important information. Self-censorship is necessarily detrimental to the public interest. The conflict between private and public interest, and the broad grey area between them, means that public interest would be less likely to be served in cases where sensitive private information is involved. This hurts the value that the industry offers to society.
References
Bloy, D., & Hadwin, S. (2007). Law and the Media. London: Sweet & Maxwell.
Campbell v Mirror Group Newspapers Ltd , UKHL 22 (House of Lords 2004).
Cox, S. A. (2014). Managing Information in Organizations: A Practical Guide to Implementing an Information Management Strategy. London: Palgrave Macmillan.
Human Rights Act 1998. (1998). (T. N. Archives, Producer) Retrieved Jan 14, 2016, from Legislation.gov: http://www.legislation.gov.uk/ukpga/1998/42/contents
Morrison, D. E., & Svennevig, M. (2002). The Public Interest, the Media and Privacy. London: Independent Television Commission.
Press Complaints Commission. (2015). Editors' Code of Practice. Retrieved Jan 14, 2016, from http://www.pcc.org.uk/EditorsCodeofPractice/UnderstandingEditorsCode.html
The Office of Communications. (2015). Section Eight: Privacy. Retrieved Jan 14, 2016, from http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/privacy/
Wainwright v Home Office, UKHL 53, [2004] 2 AC 406 (UK House of Lords 2003).
Webb, S., Jones, R., & Walker, R. (2006). A new right of privacy following the House of Lords decision in Naomi Campbell–v-MGN Limited? Hertfordshire law Journal , 2 (2), 30-40.
Wilkinson v. Downton, 2 Q.B.57 (1897).
